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Legal Issues in Drug Testing Probation and Parole Clients and Employees

NCJ Number
R V Carmen; del; J R Sorensen
Date Published
34 pages
This report explores the legal issues surrounding drug testing in probation and parole and considers the issue of testing probation and parole officers.
Although probation and parole are separate agencies in most States, probationers and parolees have similar legal status with regard to drug testing. While drug testing has generally been upheld as a condition of probation, probationers have often attacked the practice on constitutional grounds. Many cases have challenged urine testing as a violation of five constitutional rights: right against unreasonable search and seizure, right to due process, right to confrontation and cross-examination, right to equal protection, and right against self-incrimination. Since none of the cases have upheld constitutional challenges to drug testing, probation and parole agencies may require clients to submit their urine for drug testing. This is because convicted offenders have diminished constitutional rights relative to the general population, and whatever constitutional rights remain are balanced against offender rehabilitation and the protection of society. The extent of drug testing of probation and parole officers is unknown, and there are no court cases challenging such practice. Being government employees, however, probation and parole officers can be compared to other public employees where courts have decided drug testing cases. Cases involving drug testing of public employees raise essentially the same constitutional issues as those challenging probation and parole client testing. The difference relates to the scope of constitutional rights involved and the State's jurisdiction for curtailing those rights. Court decisions involving probation and parole officers indicate that drug testing may be allowed under narrow and limited conditions. 39 references.